Vicars v. Atlantic Discount Co.

• Citation: 205 Va. 934,140 S.E.2d 667
• Court: Supreme Court of Virginia
• Decision Date: 08 March 1965
• Parties: D. T. VICARS v. ATLANTIC DISCOUNT COMPANY, Inc.

Page 667

140 S.E.2d 667

205 Va. 934

D. T. VICARS v. ATLANTIC DISCOUNT COMPANY, Inc.

Supreme Court of Appeals of Virginia.

March 8, 1965.

Jerry E. Dishner, Gate City, for plaintiff in error.

John W. Riely, Richard G. Joynt, Richmond (Hunton, Williams, Gay, Powell & Gibson, richmond, on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

CARRICO, Justice.

Atlantic Discount Company, Inc., the plaintiff, brought an action in detinue against D. T. Vicars, the defendant, seeking to recover the possession of a Chevrolet Corvette automobile. The defendant filed grounds of defense in which he denied that he unlawfully detained possession of the automobile from the plaintiff.

The case was heard by the trial court, sitting without a jury, and possession of the vehicle, or an alternative money judgment of $1950.00, was awarded the plaintiff. The defendant was granted a writ of error.

The evidence shows that on April 3, 1962, Mrs. C. L. Powell purchased from Albany Motors, also known as Newell Motor Company, of Albany, Georgia, a Chevrolet Corvette automobile. An unsigned bill of sale was given to Mrs. Powell showing the price of the car to be $2895.00, with a down payment of $995.00 and an 'amount to finance' of $1900.00, to be 'financed by Atlantic Discount Company, Inc.'

The bill of sale described the automobile as a 1960 model Chevrolet Corvette '2-dr HT & Conv.,' with a serial number of 01121A108468.

Mrs. Powell executed a conditional sale agreement stipulating that title to the vehicle was to be retained by the holder, 'meaning Seller, or Atlantic Discount Company, Inc. * * * if this contract is assigned to it,' until the unpaid balance of the purchaser price was paid in full. The agreement provided that, upon default, the holder would be entitled to immediate possession. The vehicle was described in the agreement in the same manner as set forth in the bill of sale, again calling for a 1960 model Corvette with a serial number of 01121A108468.

Attached to the conditonal sale agreement was an assignment thereof to the plaintiff, which was executed on behalf of Albany Motors by W. L. Fowler. Also attached was another document executed by both Fowler and Mrs. Powell and acknowledged by the latter. This document described the vehicle in the same manner as set forth in the bill of sale and conditional sale agreement and on its reverse side was an assignment thereof to the plaintiff.

The conditional sale agreement and its attachments were recorded in the clerk's office of Dougherty County, Georgia, on April 12, 1962.

On the date of her purchase of the automobile, Mrs. Powell applied for license plates and was issued a Georgia plate for 1962 bearing the number 25-D-838. She also received a registration certificate with the same year model and serial number shown for her automobile as was listed on the papers previously described.

In the first part of June, 1962, the automobile 'broke down' and Mrs. Powell left it with a mechanic, Oscar Parker, in Atlanta, Georgia. Parker was to repair the vehicle and deliver it to Mrs. Powell in Albany. Although she 'kept calling and asking him to fix the car and bring it to me', Parker did not return the vehicle to Mrs. Powell and she was never able to recover its possession.

After making the payment due in June, 1962, Mrs. Powell defaulted in the payments required by the conditional sale agreement.

Meanwhile, on June 14, 1962, D. A. Greene, of D. A. Greene Motors, Inc., of Kingsport, Tennessee, purchased a Chevrolet Corvette from a motor company in Atlanta, Georgia. Greene secured a Tennessee certificate of title to the vehicle. He later sold the car to the defendant, delivering to him the Tennessee certificate. The defendant then secured a certificate of title from the Virginia Division of Motor Vehicles.

An investigation of the loss of Mrs. Powell's automobile was conducted by the Federal Bureau of Investigation, the Georgia Bureau of Investigation and the National Automobile Theft Association. This investigation led to the vehicle held by the defendant in Nickelsville, Virginia, and the present litigation ensued.

The vehicle purchased by the defendant was described as a 1959 model Chevrolet Corvette with a serial number of J59S108468. This description differed from that of the vehicle purchased by Mrs. Powell in that the latter was described as a 1960 model with a serial number of 01121A108468. The evidence showed that all serial numbers of 1959 Corvettes commenced with 'J59' while the 1960 models began with the digit '0'. However, there was no difference in appearance between a 1959 model and a 1960 model Corvette.

The plaintiff offered testimony to show that when Mrs. Powell purchased her vehicle, a representative of Albany Motors inserted the incorrect year model and serial number on the bill of sale and conditional sale agreement 'to get the finance company to give more money on financing of the car.' This evidence was ruled out of the case upon the objection of the defendant. However, the defendant now relies on this testimony to impeach the transaction between Albany Motors and Mrs. Powell and he will be taken, therefore, to have waived the objection.

There was evidence showing that the last six digits of the serial number of the Powell vehicle were identical with the last six digits of the defendant's serial number; that these six digits represented the production number of the vehicle and that only one Corvette would be manufactured each year bearing a number containing those same last six digits.

The evidence showed that the vehicle purchased by Mrs. Powell was a two-door hardtop convertible, gunmetal or blue-gray in color; that it had a fuel injection system, an uncommon type of equipment, and that it had a crack in a fender and damage under a door. The evidence further showed that the vehicle held by the defendant had these same characteristic points of identification. And, most surprising of all, it was shown that when the sheriff took the automobile into possession from the defendant, under the detinue warrant, he found in the trunk a license plate which turned out to be the same one that had been issued to Mrs. Powell in Georgia, bearing the number 25-D-838.

Mrs. Powell was called as a witness on behalf of the plaintiff. She was permitted to view the vehicle in dispute and when she returned to the witness stand she was asked, 'Is that the car you bought from the Albany Motor Company on April 3, 1962?' She replied, 'Yes, sir. It certainly is.'

The parties agree that the law of Georgia is to control all questions as to the status of the title of the plaintiff to the automobile in question. However, as the defendant suggests, the law of Virginia must control all questions of procedure, burden of proof and sufficiency of evidence.

In Virginia, 'in order to maintain the action of detinue these points are necessary: (1) The plaintiff must have property in the thing sought to be recovered; (2) he must have the right to its immediate possession; (3) it must be capable of identification; (4) the property must be of some value, and (5) the defendant must have had possession at some time prior to the institution of the action.' Burks Pleading and Practice, 4th Ed., Sec. 126, p. 241.

The last two points cited by Burks are not in issue in this case. The defendant's position generally revolves around the first three points. His contentions are that the plaintiff did not prove its title or its right to possession and did not establish the identity of the vehicle in dispute.

The parties agree that at the time of the sale to Mrs. Powell, Georgia was a nontitle state, that is, there was no statute requiring the registration of title to a motor vehicle. The parties are, however, in dispute as to the manner in which title to a motor vehicle could properly be passed in Georgia.

The defendant asserts that 'the state of Georgia requires a Bill of Sale, executed by seller in order to transfer title to a vehicle' and since the bill of sale delivered to Mrs. Powell was unsigned, it was invalid.

We have been unable to find any support in Georgia law for the defendant's assertion. To the contrary, section 29-108 of the Georgia Code provides:

'A deed to personalty needs no attesting witness to make it valid; in other respects the principles applicable to deeds to lands are applicable to it. Generally, a deed is not necessary to convey title to personalty.' [Emphasis added.]

In the...